Opinion; Subjects: MADAGASCAR, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.24-21067 (E) 070125 080125
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 100th session, 26–30 August 2024
Opinion No. 36/2024 concerning Paul Maillot (Madagascar)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 51/8.
2.
In accordance with its methods of work,1 on 29 February 2024 the Working Group
transmitted to the Government of Madagascar a communication concerning Paul Maillot. On
26 April 2024, the Government requested an extension of the deadline for its response, which
was granted. The Government submitted a late response on 18 June 2024. The State is a party
to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/36
General Assembly
Distr.: General
25 November 2024
English
Original: French
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1.
Submissions
(a)
Communication from the source
4.
Paul Maillot, also known as Paul Maillot Rafanoharana, is a Malagasy and French
citizen born on 2 May 1963. He is a business executive, political adviser and former officer
of the French Gendarmerie. He is said to have held political positions in Madagascar for 10
years and to be habitually resident in Antananarivo.
(i)
Arrest and detention
5.
Mr. Maillot was allegedly arrested at his home in Antananarivo on 20 July 2021
following a police raid. According to the source, the raid was carried out without the
authorization of a judge, and the arrest was conducted in a language Mr. Maillot did not
speak. He was not informed of the reasons for his detention at the time of his arrest. The
arrest was made under articles 206 et seq. of the Code of Criminal Procedure, which concern
flagrante delicto. The source submits that the conditions for the application of article 206
were not met.
6.
Following his arrest, Mr. Maillot was held in police custody in Ivato for 15 days. It
took 10 days for him to be informed of the extension of the custody period. The source notes
that, under national law, the custody period must not exceed 48 hours.
7.
Following his 15 days in police custody, on 4 August 2021, Mr. Maillot appeared
before the investigating judge of the Anosa court of first instance and was placed in pretrial
detention. He was held in solitary confinement in Tsiafahy prison in Antananarivo.
8.
The source explains that the investigation of Mr. Maillot was riddled with violations
of the right to a fair trial. Nevertheless, on 11 October 2021, the indictment division referred
Mr. Maillot and 19 other persons to the ordinary criminal court of Antananarivo. On the basis
of articles 265 and 266 of the Criminal Code, Mr. Maillot was accused of being a member of
an association formed, and participating in an agreement reached, for the purpose of
preparing or committing crimes against persons, in particular an attempt on the life of the
Head of State. Under articles 87 and 89 of the Criminal Code, he was accused of conspiracy
to make an attempt on the life of the Head of State, with the fact that no act was committed
or initiated in preparation for the execution of such an attack being taken into account. Lastly,
on the basis of article 87 of the Criminal Code, Mr. Maillot was accused of having committed
an attack with the aim of bringing down or changing the Government. The offences that
Mr. Maillot was charged with are also governed by articles 41, 58 and 96 of Act No. 69011
of 22 July 1969, which regulates weapons other than knives.
9.
On 2 September 2021, in accordance with article 53 of the Code of Criminal
Procedure, Mr. Maillot’s lawyers requested that the investigation be declared null and void
owing to the alleged violations of the right to a fair trial. This request was denied. On
26 October 2021, the lawyers made the same request again in an application to the indictment
division for the proceedings to be set aside, in line with articles 239, 309, 330 and 392 of the
Code of Criminal Procedure.
10.
Mr. Maillot’s trial began on 6 December 2021. On 17 December, he was found guilty
of the charges against him and was sentenced to 20 years of hard labour. Three of his
co-defendants were also found guilty, while the 16 others were acquitted. In addition to the
aforementioned articles, the decision of the criminal court cited articles 22, 95, 113 et seq.,
441 et seq. and 569 et seq. of the Code of Criminal Procedure and article 463 of the Criminal
Code.
11.
The source notes that the decision handing down Mr. Maillot’s conviction is
extremely brief, with less than one page being dedicated to the analysis of the charges and
the evidence. According to the source, the only inculpatory items of evidence mentioned in
the decision are: a budget document that Mr. Maillot admitted to having drafted for a political
project and not as part of the preparations for a coup d’état; a letter sent to the managing
director of an oil company in order to obtain financing of €10 million; a recording of a
conversation between Mr. Maillot, his wife and an unidentified third party; a rifle and
cartridges found during the search of his home; and a sum equivalent to €250,000, which had
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also been found during that search and, according to the prosecutor, was to be used to partially
finance the operation. According to the source, Mr. Maillot explained that this sum was
intended to be used to finance the purchase, by his investment fund, of gold for resale to the
Central Bank of Madagascar. During the investigation, he indicated on several occasions that
records of all the exchanges between the banker and the person wishing to buy the gold in
question were stored on his telephone, which had been seized when he was arrested.
However, during both the investigation and the trial, Mr. Maillot was not allowed to have
access to this evidence or to produce it in support of his defence.
12.
On 6 December 2021, at the opening of the trial before the criminal court,
Mr. Maillot’s lawyers once again raised the issue of the alleged violations of their client’s
right to a defence and requested that the proceedings be nullified in limine litis. The court
dismissed these objections without examining them, stating that the request for nullification
had not been submitted to the indictment division by means of an application to set aside the
proceedings. The source notes, in this respect, that Mr. Maillot’s lawyers had filed such an
application on 26 October 2021.
13.
The source points out that, pursuant to articles 443 and 444 of the Code of Criminal
Procedure, criminal court decisions are not subject to appeal. Accordingly, the only channel
open to parties is to bring an appeal on points of law before the Court of Cassation. The
source recalls that an appeal on points of law does not constitute a genuine review by a higher
tribunal within the meaning of article 14 (5) of the Covenant, since the Court of Cassation is
competent only to examine the application of the law by the lower court and cannot review
that court’s evaluation of the facts or the finding of guilt.
14.
In this connection, the source states that, on 20 December 2021, Mr. Maillot lodged
an appeal on points of law against the ordinary criminal court’s decision handing down his
conviction. The Court of Cassation rejected that appeal on 26 August 2022. Mr. Maillot’s
lawyers, however, are yet to receive a copy of the Court’s decision despite their numerous
requests.
15.
According to the source, Mr. Maillot is still being held in solitary confinement in
Tsiafahy prison. On 31 August 2022, Mr. Maillot submitted a transfer request to the
Directorate for Criminal Matters and Pardons of the French Ministry of Justice, in accordance
with the provisions of the cooperation agreement of 4 June 1973 between France and
Madagascar. On 23 January 2023, the French authorities approved Mr. Maillot’s transfer to
France. The Malagasy authorities, however, continue to oppose that transfer. The source
notes that an agreement was reached for another French citizen who had been detained and
convicted in Madagascar as part of the same case to be transferred to France. According to
the source, the refusal of the Malagasy authorities to transfer Mr. Maillot was part of a
political plan to instrumentalize his situation in the context of the presidential elections of
November 2023. The source submits that, during the presidential campaign, Mr. Maillot’s
situation was invoked on numerous occasions by President Rajoelina, who was seeking
re-election, in order to denounce the attempted coups d’état that he had allegedly faced.
Furthermore, the negotiations on Mr. Maillot’s transfer were suspended during the election
period.
(ii)
Detention conditions
16.
The source reports that Mr. Maillot’s situation continues to deteriorate and that his
health is worsening as a result of the conditions in which he is being held. He is in solitary
confinement in a windowless cell that measures approximately 2 by 4 metres. His cell is
mostly kept in complete darkness and is under constant video surveillance. Mr. Maillot has
no access to a toilet or shower and is forced to relieve himself directly in his cell.
17.
The source explains that Mr. Maillot is reliant on assistance from his family in order
to receive food and medicine. Providing him with food, medicine and basic necessities is
especially challenging because the family member who is primarily responsible for doing so
lives abroad.
18.
Mr. Maillot has lost a significant amount of weight since being imprisoned and
regularly has worrying symptoms such as nosebleeds, abnormally high blood pressure, burst
blood vessels in his eyes and persistent migraines.
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19.
In December 2023, Mr. Maillot suffered a particularly worrying lateral paralysis of
the face, leaving him unable to speak or eat and causing him breathing difficulties. The
French Embassy contacted the Malagasy authorities, following which Mr. Maillot was
hospitalized for half a day before being returned to detention. The source notes that, as a
stroke was ruled out, the paralysis could have been caused by Mr. Maillot having been beaten
while in detention, since an injury to his nasal septum might have affected the functioning of
certain nerves.
20.
The source reports that Mr. Maillot receives regular consular visits, but that the French
authorities are frustrated by the Malagasy authorities’ lack of cooperation and silence in
response to the requests to improve his conditions of detention and authorize his transfer.
(iii)
Legal analysis
21.
The source submits that Mr. Maillot’s detention is arbitrary under categories I, II
and III.
a.
Category I
22.
According to the source, Mr. Maillot’s detention is arbitrary under category I because
the reason for his detention is contrary to national law.
23.
The source submits that the police failed to produce a warrant when arresting
Mr. Maillot, in violation of articles 135 and 206 et seq. of the Code of Criminal Procedure.
According to the source, the conditions for the application of the procedure to be followed in
cases of flagrante delicto, as provided for in article 206 of the Code of Criminal Procedure,
were not met in this case. It is reported that it was not until November 2021, four months
after Mr. Maillot’s detention, that his lawyers were given a copy of an arrest warrant. The
source states that the document was falsified and contains numerous contradictions and
inaccuracies, in addition to a forgery of Mr. Maillot’s signature.
24.
Furthermore, the source submits that Mr. Maillot was not informed of the reasons for
his detention at the time of his arrest, and that the arrest was conducted in a language he did
not understand.
25.
Mr. Maillot was placed in police custody without his lawyers knowing whether the
measure had been authorized by a judicial authority. Mr. Maillot was held in police custody
for 15 days. It took 10 days for him to be informed of the extension of the custody period. In
this connection, the source explains that article 136 of the Code of Criminal Procedure limits
police custody to a period of 48 hours, which may be extended once.
26.
The source also notes that the Code of Criminal Procedure provides for the extension
of the custody period to 12 days on grounds of the distance between the place of arrest and
the location of the investigating authority. The source asserts, however, that that provision is
not applicable in this case, as Mr. Maillot was arrested at his home in Antananarivo, which
is the country’s capital and home to the prosecuting authority. The source submits that, in
any case, the 12-day period was exceeded because Mr. Maillot was held in police custody for
15 days.
27.
The source also points out that there is no evidence to suggest that Mr. Maillot’s
detention was authorized by a judicial authority. Given that there is no legal basis for
Mr. Maillot’s detention and that it was not ordered by a judicial authority, the source asserts
that it is arbitrary under category I.
b.
Category II
28.
The source submits that Mr. Maillot’s detention is also arbitrary under category II
because it occurred as a result of the exercise of his rights to freedom of thought, expression
and assembly and his right of access to public service, as protected by articles 18, 19, 20 and
21 of the Universal Declaration of Human Rights.
29.
The source explains that Mr. Maillot was the diplomatic adviser to the Archbishop of
Antananarivo, who is a prominent figure in Madagascar owing to the Church’s important
role and its efforts to mediate between the country’s various political parties. The source
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notes that the Archbishop has been critical of the current political leadership and has called
on the Government to do more to combat poverty and famine.
30.
In 2010, Mr. Maillot was asked to become an adviser to President Rajoelina, which
gave him a relatively high profile in Madagascar and left him open to pressure. He was openly
critical of mafia groups, in particular those in the gold sector, and their attempts to seize
political power. In 2011, Mr. Maillot resigned from his position, using a public interview to
denounce the pressure, attacks and physical threats to which he had been subjected after
taking up the post. He also stated that the President was “a prisoner of the power struggles
playing out within his inner circle” and called for the country to move away from “sclerotic
personal mindsets”.
31.
In 2019, Mr. Maillot was again asked by President Rajoelina’s office to advise on the
composition of a new government. In 2020, Mr. Maillot set up an investment fund aimed at
restructuring the gold sector and ridding it of the practices he had publicly denounced as
being mafia-like. In July 2021, the President’s office once again sought Mr. Maillot’s advice
on the structure of the government and the individuals who could join it as ministers.
According to the source, it was around that time that Mr. Maillot’s name began to be
mentioned in the press and on social media as one of the persons who might replace the then
Prime Minister, whose relationship with the President had deteriorated.
32.
The source submits that, while exercising his duties, Mr. Maillot again criticized the
country’s governance and government policies and called on the President to “end nepotism
and favouritism”, which he said were present across the Malagasy administration.
33.
The source notes that most of the individuals proposed by Mr. Maillot to form part of
the President’s office were also arrested. According to the source, Mr. Maillot is being held
despite the absence of material evidence of his involvement in an offence, and his detention
is a pretext for removing him from the political sphere and punishing him for his public
criticism of the current Government. The source notes that these arguments were invoked by
the defence during Mr. Maillot’s trial before the criminal court.
34.
In view of the above, the source submits that Mr. Maillot’s detention occurred as a
result of the exercise of his rights to freedom of thought, expression and assembly and his
right of access to public service, as guaranteed by articles 18 to 21 of the Universal
Declaration of Human Rights. The source concludes that Mr. Maillot’s detention is arbitrary
under category II.
c.
Category III
35.
According to the source, Mr. Maillot’s detention is arbitrary under category III since
his rights to be presumed innocent and to be heard by an independent tribunal have been
violated.
36.
The source states that, the day after Mr. Maillot was taken into custody, the President’s
diplomatic adviser gave an interview in which he discussed Mr. Maillot’s arrest and indicated
that Mr. Maillot had “confessed”. The source submits that Mr. Maillot had not, however,
been interviewed or informed of the charges against him at that point. The source adds that
Mr. Maillot has always denied the charges against him.
37.
Furthermore, on 8 August 2021, fewer than 20 days after Mr. Maillot’s arrest, the
President made the following remarks during an address:
I have already received a report on the content of the Apollo 21 plan. Apollo 21, as
we all know, and as the Attorney General of the Republic has stated, contains a request
for funding for the plan to destabilize the Government and the entire country and
assassinate some of our important figures.
38.
When asked about the presumption of innocence, the President made particularly
strong and hostile remarks about Mr. Maillot.
39.
According to the source, these remarks amount to interference by the Head of State in
ongoing judicial proceedings, which jeopardizes the independence of the judiciary and the
rule of law. The source also argues that the particularly strong and hostile comments made
by the President with regard to Mr. Maillot violated the latter’s right to be presumed innocent.
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In this connection, the source adds that, in response to the President’s remarks, the Presidents
of the Malagasy Senate and National Assembly and party leaders called for Mr. Maillot to
receive severe punishment. These statements were made to local television stations and were
raised by Mr. Maillot’s lawyers before the criminal court. Furthermore, following
Mr. Maillot’s arrest, the Attorney General, who reports to the executive branch, stated that
Mr. Maillot was guilty of the charges against him and that the accused persons had “devised
a plan to eliminate and neutralize various Malagasy personalities, including the Head of
State”.
40.
The source also submits that Mr. Maillot was not informed of the reasons for his arrest
until three days after the fact, on 23 July 2021, when he was interrogated for the first time.
He was able to speak with his lawyers only after his third day in police custody. The source
states that, during the 15 days that Mr. Maillot was held in police custody, the authorities in
charge of the investigation had microphones and cameras installed in the visiting room so
that he would be unable to communicate freely with his lawyers. In addition, once Mr. Maillot
was placed in pretrial detention, all meetings with his lawyers were held in the presence of
two prison officers and were limited to 10 minutes. The source adds that Mr. Maillot’s
lawyers did not receive a copy of the investigation file or the evidence against their client. It
was only after the investigation had been closed that they were able to briefly read the file,
without ever receiving a copy.
41.
The source also submits that, after he had been interrogated, Mr. Maillot was not
permitted to have the written transcripts of his statements changed and was required to sign
them even though they were not consistent with what he had said. According to the source,
the investigation was conducted exclusively on the prosecution’s behalf, and the individuals
who led it refused to hear from key players in the case who could testify on behalf of the
accused or refute the charges against them. They also refused to allow the cross-examination
of the accused persons and denied them the opportunity to present material evidence in their
defence.
42.
The source points out that, during the trial, the prosecutor submitted the following
items of falsified evidence: a forgery of Mr. Maillot’s signature, computer files with incorrect
dates and an anonymous audio recording that had been edited and that the Office of the
Attorney General had recognized as being flawed. In addition, the prosecutor failed to submit
the material evidence that had been described as inculpatory in the indictment order. The
source adds that one of the co-defendants retracted his earlier statements, indicating that he
had made them after being subjected to pressure by the authorities to testify against
Mr. Maillot.
43.
According to the source, one of the documents on which Mr. Maillot’s signature was
forged is a letter dated 12 October 2020, which had been sent by Mr. Maillot to the managing
director of the Benchmark Group, the majority shareholder in Madagascar Oil S.A., to
request €10 million in financing. Mr. Maillot formally contests the authenticity of this
document and his signature. A former senior government official, who is a strategic adviser
to the Benchmark Group, also disputes the document’s authenticity.
44.
With regard to the computer files, the source explains that, during the hearing, the
prosecutor accused Mr. Maillot of drafting a plan for a coup d’état and sharing that plan with
another person in May 2021. These allegations were based on a computer file, the metadata
of which reveal that it was created on three different dates. Two of those dates were in June
2021, after the events denounced by the prosecutor, and one was in August 2021, after
Mr. Maillot had been imprisoned. Furthermore, during his hearing, Mr. Maillot stated that he
had severed his ties with the above-mentioned person in March 2021 and provided evidence
to support that claim.
45.
The source notes that, during the investigation phase, Mr. Maillot denounced the
absence of a report on the search of his home. During the trial, the prosecutor submitted a
report that was said to have been signed by Mr. Maillot. Mr. Maillot formally declared that
he had not signed the document and that his signature had been poorly forged. In this regard,
the source notes that the search was carried out on 21 July 2021, the day after Mr. Maillot’s
arrest, when he was not present.
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46.
The source concludes that the non-observance of the international norms relating to
the right to a fair trial is of such gravity as to give Mr. Maillot’s deprivation of liberty an
arbitrary character, under category III.
(b)
Response from the Government
47.
On 29 February 2024, the Working Group transmitted a communication concerning
Mr. Maillot to the Government, requesting it to provide detailed information about him by
29 April 2024 and to ensure his physical and mental integrity.
48.
The Government requested an extension in accordance with paragraph 16 of the
Working Group’s methods of work, which was granted and lasted until 29 May 2024. The
Government submitted a response on 18 June 2024, that is, after the established deadline.
The Working Group cannot, therefore, accept the response as if it had been presented within
the time limit.
2.
Discussion
49.
In the absence of a response from the Government within the deadline, the Working
Group has decided to render the present opinion, in conformity with paragraph 15 of its
methods of work.
50.
In determining whether the deprivation of liberty of Mr. Maillot is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has established a prima facie case for breach of international
law constituting arbitrary detention, the burden of proof should be understood to rest upon
the Government if it wishes to refute the allegations.2 Mere assertions by the Government
that lawful procedures have been followed are not sufficient to rebut the source’s allegations.3
In the present case, the Government has chosen not to challenge in a timely fashion the prima
facie credible allegations made by the source.
51.
The source submits that Mr. Maillot’s detention is arbitrary under categories I, II
and III. The Working Group shall consider these categories in turn.
(a)
Category I
52.
According to the source, it took three days for Mr. Maillot to be informed of the
reasons for his arrest. Furthermore, the authorities arrested him and searched his home
without presenting him with an arrest or search warrant.
53.
The Working Group recalls that article 9 (2) of the Covenant provides that anyone
who is arrested is to be informed, at the time of arrest, of the reasons for the arrest and is to
be promptly informed of any charges against him or her. As the Working Group has stated,
in order for a deprivation of liberty to have a legal basis, it is not sufficient for there to be a
law authorizing the arrest. The authorities must invoke that legal basis and apply it to the
circumstances of the case.4 This is typically done through an arrest warrant, an arrest order
or equivalent document.5 The reasons for arrest must be provided immediately upon arrest
and must include not only the general legal basis of the arrest, but also enough factual
specifics to indicate the substance of the complaint, such as the wrongful act and the identity
of an alleged victim.6
54.
The Working Group notes that, in the present case, Mr. Maillot’s arrest was conducted
in a language he did not understand, which prevented him from being informed of the reasons
for his detention, in direct breach of principle 14 of the Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment. Furthermore, on the basis of
the information available to it, the Working Group is unable to conclude that Mr. Maillot was
arrested in flagrante delicto, which would usually mean that it was not possible to obtain a
2 A/HRC/19/57, para. 68.
3 Ibid.
4 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
5 See, for example, opinion No. 4/2023, para. 64.
6 Opinion No. 71/2021, para. 64.
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warrant. Based on the foregoing, the Working Group finds a breach of article 9 (2) of the
Covenant.
55.
The Working Group recalls that it is a well-established norm of international law that
pretrial detention is to be the exception and not the rule, and that it should be ordered for as
short a time as possible.7 Article 9 (3) of the Covenant provides that it is not to be the general
rule that persons awaiting trial are to be detained in custody, but release may be subject to
guarantees to appear for trial and at any other stage of the judicial proceedings. It follows that
liberty is recognized as a principle and detention as an exception in the interests of justice.8
In this case, Mr. Maillot was held in pretrial detention for 15 days and was informed of the
renewal of his detention only after 10 days, which means that he was held for much longer
than the legal 48-hour period, which could be extended once. According to the source, the
possibility of extending the custody period to up to 12 days, as provided for by law, is not
applicable in this case, and it was not mentioned in the Government’s response. Furthermore,
in view of the unrefuted allegations that Mr. Maillot was arrested on 20 July 2021 and was
not brought before a judge until 4 August 2021, the Working Group considers that
Mr. Maillot’s right under article 9 (3) of the Covenant to be brought promptly before a
judicial authority has been violated.
56.
In view of the above, the Working Group finds that the Government violated articles 3
and 9 of the Universal Declaration of Human Rights, article 9 of the Covenant and
principles 4, 10, 11, 14, 37 and 38 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment. Mr. Maillot’s detention is therefore arbitrary
under category I.
(b)
Category II
57.
The source submits that Mr. Maillot’s detention is arbitrary under category II because
it occurred as a result of the peaceful exercise of his rights to freedom of thought, expression
and assembly and his right of access to public service, as protected by articles 18 to 21 of the
Universal Declaration of Human Rights. In this respect, the source notes that Mr. Maillot
acted as an adviser to the Government on several occasions, in particular on ministerial
appointments. After facing multiple threats and attacks, Mr. Maillot resigned from his
position. Most of the individuals he had proposed for appointment by the President’s office
were then arrested on similar charges.
58.
On the basis of the elements provided to it, the Working Group considers that it does
not have sufficient information to conclude that Mr. Maillot’s detention and subsequent
conviction resulted from the exercise of his rights and freedoms guaranteed by articles 18 to
21 of the Universal Declaration of Human Rights.
(c)
Category III
59.
The source asserts that Mr. Maillot’s detention is arbitrary under category III owing
to the violation of his right to a fair trial, in particular his rights to be presumed innocent and
to be heard by an independent tribunal.
60.
The Working Group recalls that article 14 (3) (a) of the Covenant provides that
everyone is entitled to be informed promptly and in detail in a language which he or she
understands of the nature and cause of the charge against him or her. The source submits that
it took three days for Mr. Maillot to be informed of the reasons for his arrest. It was at that
point that he was allowed to communicate with his lawyers for the first time. In addition,
Mr. Maillot’s right to communicate freely with his lawyer was compromised by the
installation of cameras and microphones in the visiting room and the imposition of a
10-minute time limit on their discussions.
61.
The Working Group recalls that, in accordance with principle 8 of the Basic Principles
on the Role of Lawyers, all arrested, detained or imprisoned persons are to be provided with
7 Opinions No. 28/2014, para. 43; No. 49/2014, para. 23; No. 1/2020, para. 53; No. 8/2020, para. 54;
and No. 66/2023, para. 48.
8 A/HRC/19/57, para. 54.
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adequate opportunities, time and facilities to be visited by and to communicate and consult
with a lawyer, without delay, interception or censorship and in full confidentiality. The right
of a defendant to have private discussions with his or her legal counsel, without surveillance,
constitutes one of the fundamental aspects of a fair trial. Preventing a lawyer from meeting
with his or her client and obtaining confidential instructions defeats much of the purpose of
legal assistance. In this respect, the Human Rights Committee has stressed that counsel
should be able to meet their clients in private and to communicate with the accused in
conditions that fully respect the confidentiality of their communications and, furthermore,
that lawyers should be able to advise persons charged with a criminal offence without
restrictions, influence, pressure or undue interference from any quarter.9
62.
Noting principle 18 (3) of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment and rule 61 (1) of the United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), both of which
stipulate that defendants must have access to legal counsel without delay, the Working Group
concludes that Mr. Maillot was deprived of effective legal representation, in breach of
article 14 (3) (b) of the Covenant, rule 61 (1) of the Nelson Mandela Rules and
principle 18 (3) of the Body of Principles.
63.
The source claims that Mr. Maillot’s rights to be presumed innocent and to be heard
by an independent tribunal were violated. In support of this claim, the source reports that the
prosecutor submitted falsified evidence, forged Mr. Maillot’s signature and altered audio
recordings. Mr. Maillot claimed to be in possession of records of telephone exchanges that
could exonerate him but was not authorized to use this evidence for his defence. In addition,
government officials publicly stated that Mr. Maillot was guilty even before his trial had
begun, thereby undermining the principle of the presumption of innocence. The Working
Group regrets the fact that the Government has not contested these allegations.
64.
Access to Mr. Maillot’s file was granted only after the investigation had been closed,
and his lawyers never received a copy. The Working Group recalls that, in principle, access
to the case file must be provided from the outset.10 Every individual deprived of liberty has
the right to access material related to his or her detention. 11 However, that right is not
absolute, and the disclosure of information may be restricted if such a restriction is necessary
and proportionate in pursuing a legitimate aim, such as protecting national security, and if
the State has demonstrated that less restrictive measures would be unable to achieve the same
result, such as providing redacted summaries that clearly point to the factual basis for the
detention.12 The Government did not provide any justification for the denial of access to the
case file. Accordingly, the Working Group considers that the authorities violated
Mr. Maillot’s rights, under articles 10 and 11 (1) of the Universal Declaration of Human
Rights and article 14 (1), (2) and (3) (b) and (e) of the Covenant, to a fair trial, to adequate
time and facilities for the preparation of a defence and to be presumed innocent.
65.
Article 14 (5) of the Covenant provides that everyone convicted of a crime has the
right to his or her conviction and sentence being reviewed by a higher tribunal according to
law. The source argues that this right has been violated as, under Malagasy law, criminal
court decisions may not be appealed. Mr. Maillot lodged an appeal on points of law with the
Court of Cassation, which is competent only to examine the application of the law by the
lower court and cannot review that court’s evaluation of the facts or the finding of guilt. The
Working Group recalls that the right of a person convicted of a criminal offence to have his
or her case reviewed by a higher court is not absolute and may be limited. However, in the
absence of any rebuttal from the Government, the Working Group finds a breach of
article 14 (5) of the Covenant.
9 Human Rights Committee, general comment No. 32 (2007), para. 34. See also the Basic Principles on
the Role of Lawyers, para. 16; A/HRC/45/16, para. 54; and opinions No. 29/2017, No. 32/2017,
No. 34/2017, No. 36/2017, No. 70/2017, No. 66/2019 and No. 70/2021.
10 See opinions No. 78/2019, No. 29/2020, No. 67/2020, No. 77/2020 and No. 83/2021.
11 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), principle 2
and guidelines 11 and 13.
12 Ibid., guideline 13, paras. 80 and 81.
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66.
In the light of the foregoing, and in the absence of a detailed response from the
Government that addresses the substance of the allegations made by the source, the Working
Group concludes that the violations of Mr. Maillot’s right to a fair trial are of such gravity as
to render his deprivation of liberty arbitrary under category III.
(d)
Concluding remarks
67.
The Working Group takes note of the source’s allegations, which have not been
refuted by the Government, that Mr. Maillot has been held in solitary confinement since 2021
and is under constant video surveillance. The Working Group takes this opportunity to
remind the Government of its obligation under article 10 (1) of the Covenant to ensure that
all persons deprived of their liberty are treated with humanity and respect for the inherent
dignity of the human person. 13 In addition, the Working Group recalls that the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment stated
that solitary confinement that exceeds 15 days, at which point some of the harmful
psychological effects of isolation can become irreversible, could amount to torture.14
3.
Disposition
68.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Paul Maillot, being in contravention of articles 3, 9, 10
and 11 of the Universal Declaration of Human Rights and articles 9 and 14 of the
International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I and III.
69.
The Working Group requests the Government of Madagascar to take the steps
necessary to remedy the situation of Mr. Maillot without delay and bring it into conformity
with the relevant international norms, including those set out in the Universal Declaration of
Human Rights and the Covenant.
70.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Maillot immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.
71.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Maillot and to take appropriate measures against those responsible for the violation of
his rights.
72.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
73.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Maillot has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Maillot;
(c)
Whether an investigation has been conducted into the violation of
Mr. Maillot’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Madagascar with its international obligations in line with
the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
13 Opinions No. 46/2020, para. 64; and No. 66/2020, para. 66.
14 A/63/175, para. 56; and A/66/288, para. 61.
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74.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
75.
The Working Group requests the source and the Government to provide the
above-mentioned information within six months of the date of transmission of the present
opinion. However, the Working Group reserves the right to take its own action in follow-up
to the opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as of any failure to take action.
76.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.15
[Adopted on 30 August 2024]
15 Human Rights Council resolution 51/8, paras. 6 and 9.